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2017 DIGILAW 1161 (JHR)

Bhushan Chandra Kumbhar v. State Of Jharkhand

2017-07-17

RONGON MUKHOPADHYAY

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JUDGMENT Rongon Mukhopadhyay, J. Heard Mr. Abhishek Sinha, learned counsel appearing for the petitioner and Mr. Shekhar Sinha, learned A.P.P., for the State. 2. This application is directed against the judgment dated 22.12.2001 passed by the learned Sessions Judge, Seraikella in Criminal Appeal No. 11 of 1995 whereby and where under the judgment and order of conviction and sentence passed by the learned Assistant Sessions Judge, Seraikella on 09.03.1995 in S. T. No. 184 of 1988 convicting the petitioner for the offence punishable under Section 307 of the Indian Penal Code and Sections 25/35 of the Arms Act and sentencing him to undergo rigorous imprisonment for three years and four years respectively has been affirmed. 3. The prosecution story in brief is that the informant was working in Arvind Construction Company and the informant along with other persons had gone to take payment in the office of the Contractor. It is alleged that on 30.12.1985 the payment could not be made due to some wrong measurement of soil and the next date was fixed for making payment. It is alleged that the petitioner and one Peru Lohar reached the place of occurrence and started abusing them. The informant and other labourers chased the petitioner who had fired from his pistol but the same did not hit Khokhan Das who had also gone to receive the payment. It is alleged that on chase the accused persons entered into the house of Dhani Ram Mahli and locked it from inside. The police on informed being came and the petitioner surrendered before the police along with revolver. 4. Based on the aforesaid allegation G. R. Case No. 761 of 1985 was instituted. Charge-sheet was submitted and after cognizance was taken the case was committed to the court of Assistant Sessions Judge, Seraikella wherein charge was framed under Section 307/34 of the Indian Penal Code and Sections 25/35 of the Arms Act and trial proceeded. 5. In course of trial ten witnesses were examined on behalf of the prosecution. P.W.-1, Nirmal Chalak, has stated that when he and other were taking payment the petitioner and Peru Lohar had come to the place of occurrence. It has been alleged that some altercation regarding payment ensued and the petitioner fired with his revolver but no one was injured. In course of trial ten witnesses were examined on behalf of the prosecution. P.W.-1, Nirmal Chalak, has stated that when he and other were taking payment the petitioner and Peru Lohar had come to the place of occurrence. It has been alleged that some altercation regarding payment ensued and the petitioner fired with his revolver but no one was injured. He has further stated that on chase both the accused persons had locked themselves in the house of Dhani Ram Mahli and after the police came they had surrendered. P.W. - 2, Nand Lal Das, was tendered by the prosecution. P.W. - 3, Suresh Das, is a formal witness. P.W. - 4, Brindavan Machhua, P.W. - 7, Thuru Layak and P.W.- 8, Baldeo Pramanik, had stated about the altercation and the subsequent firing made by the petitioner which however did not hit anyone. These witnesses have also stated about the accused persons fleeing away from the place of occurrence on chase and had taken shelter in the house of Dhani Ram Mahli when police came and the accused persons had surrendered. P.W. -5, Khokan Das, had stated that on the date of the incident he had gone to receive the payment along with other employees. He has further stated that the accused persons had come and some altercation had started wherein after the petitioner no. 1 was chased who subsequently had fired at this witness but since he sat down he was saved. This witness has further stated that the accused had entered into the house of Dhani Ram Mahli and had subsequently surrendered when police came. P.W. - 6, Dhani Ram Mahli, has stated that he had seen many persons near his house and he had come to know about the occurrence that the petitioner and another accused were inside his house. P.W. - 9, Jung Bahadur Singh, is a formal witness. P.W. - 10, Suresh Das, is also a formal witness. 6. It has been stated by the learned counsel for the petitioner that admittedly no injury was suffered by any of the persons on account of the alleged firing made by the petitioner. It has been stated that no attempt of committing murder was made by the petitioner. Learned counsel further submits that Sergeant Major was never examined neither any independent witnesses were examined. It has been stated that no attempt of committing murder was made by the petitioner. Learned counsel further submits that Sergeant Major was never examined neither any independent witnesses were examined. It has also been submitted that the Investigating Officer was also not examined by the prosecution which has caused prejudice to the defence. Learned counsel submits that in such circumstance the petitioner deserves acquittal from the criminal case. 7. Learned A.P.P. has opposed the prayer made by the petitioner. 8. It appears from the evidence adduced on behalf of the prosecution that P.W.-1, P.W.-4, P.W.-5, P.W.-7 and P.W.-8 have stated about the altercation with the petitioner and co-accused Peru Lohar and on being chased by the labourers the petitioner had fired at P.W.-5 but somehow the shot did not hit him. Although the Investigating Officer has not been examined but the same has not caused prejudice to the defence in view of the consistent evidence led by the prosecution who have proved the place of occurrence as well as the incident of firing made by the petitioner and his subsequently fleeing away from the place of occurrence and taking shelter in the house of Dhani Ram Mahli from where he was apprehended. 9. The contention of the learned counsel for the petitioner is that non examination of the Sergeant Major has also caused prejudice to the defence but it appears that the test report of the Sergeant Major has been brought on record by the prosecution and has been exhibited as Exhibit - 6. The sanction report has also been exhibited. The report of the expert reveals that the country made pistol recovered from the possession of the petitioner was in a working condition. The consistent oral evidence on record apart from the documentary evidence do suggest about the involvement of the petitioner in committing the offence and such circumstance have rightly been taken into consideration by the learned trial court. The petitioner was rightly convicted for the offence punishable under Section 307 of the Indian Penal Code and Sections 25/35 of the Arms Act. 10. Learned appellate court also on proper appreciation of the materials available on record had affirmed the judgment of conviction. There being no reason to conclude otherwise the order of conviction passed by the leaned trial court and affirmed by the learned appellate court is, hereby, sustained. 11. 10. Learned appellate court also on proper appreciation of the materials available on record had affirmed the judgment of conviction. There being no reason to conclude otherwise the order of conviction passed by the leaned trial court and affirmed by the learned appellate court is, hereby, sustained. 11. However, with respect to the sentence which has been imposed upon the petitioner, it is an admitted fact that no injury was suffered by anyone on account of firing by the petitioner and the petitioner seems to have subsequently surrendered when the police had encircled the house of Dhani Ram Mahli. The petitioner is facing the rigors of the prosecution case since the year 1985. More than three decades have passed since the institution of the cases. On such circumstance being considered by this Court the period of sentence imposed upon the petitioner is modified to the period already undergone. 12. This application stands dismissed with the aforesaid modification in sentence.